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Covill v. Colvin

United States District Court, D. Rhode Island

September 22, 2016

ALICIA A. COVILL, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          Patricia A. Sullivan, United States Magistrate Judge

         Plaintiff Alicia A. Covill alleges that she is disabled due to panic attacks, anxiety and depression; this appeal is focused on the severity of the limitations caused by these well-established impairments. She has filed a motion to reverse the decision of the Commissioner of Social Security (the “Commissioner”), denying Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”). She alleges that multiple errors tainted the decision of the Administrative Law Judge (“ALJ”), including his adverse credibility finding; his decision to afford minimal weight to the opinions of her treating psychiatrist and therapist, relying instead on the reviewing opinion of the Social Security Administration (“SSA”) psychologist; and his failure to conform his residual functional capacity (“RFC”)[1] finding to the to the SSA psychologist's opinion. Defendant Carolyn W. Colvin (“Defendant”) has filed a motion for an order affirming the Commissioner's decision.

         The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entire record, and guided by the well-settled principle that this Court may not substitute its own judgment for that of the Commissioner, see Brown v. Apfel, 71 F.Supp.2d 28, 30-31 (D.R.I. 1999), I find that the ALJ's findings are sufficiently supported by substantial evidence and recommend that Plaintiff's Motion for Reversal of the Disability Determination of the Commissioner of Social Security (ECF No. 10) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 11) be GRANTED.

         I. Background

         A. Plaintiff's Background

         Plaintiff is a younger individual, thirty-four at the alleged onset of disability on May 22, 2012. A high school graduate, who had been attending (and continued to attend during the period of disability)[2] college, [3] she also worked as a bartender and “at the piano bar doing pianos” (she is a talented musician). Tr. 33-35, 248. A self-described person who “love[s] people, ” Tr. 33, she has raised her son alone; he was fifteen at the date of onset. Tr. 212.

         Since the age of twenty-three, Plaintiff has had anxiety attacks. Tr. 37. While she was working, Plaintiff's mental health care was provided by her primary care providers at Anchor Medical (Dr. Hardy and Physician Assistant Kochansky). Tr. 231-36. During this period, she frequently went to the emergency room at Kent Hospital due to anxiety and panic attacks. Tr. 37, 195, 202, 203, 212. While no provider has questioned the credibility of Plaintiff's claim of anxiety and panic attacks, despite many presentations to the emergency room, Plaintiff was never hospitalized. Rather, after mental status examinations that were generally normal except for anxiety and occasionally depression, she was sent home. See, e.g., Tr. 198 (“[w]ell appearing and in no distress on leaving ER”); Tr. 213 (released to home improved and stable). The only global assessment of functioning (“GAF”) score assigned during this pre-onset period was 55, evidencing moderate difficulties, which was assessed by a licensed social worker at the Kent Center a day after she had been to the emergency room.[4] Tr. 200.

         In the period leading up to onset, Plaintiff was working three jobs, attending school part-time and caring for her son. Tr. 212. Overwhelmed by stress, in April 2012, she attempted suicide by ingesting an overdose of prescribed Klonopin. Tr. 217. In May 2012, she lost her job. Since then, the record refers to various work and work-like activities. Tr. 226 (in July 2012, medical treatment needed after drinking something at work); Tr. 230 (in August 2012, reported she began new job); Tr. 241 (in October 2012, reported she is working intermittently doing painting at friend's business); Tr. 292 (in January 2013, reported being full-time student in teaching, science, and music); Tr. 315 (in April 2013, medical treatment sought after dizziness at work); Tr. 357 (in December 2013, medical treatment for tendinitis after moving); Tr. 389 (in February 2014, medical treatment for leg pain after heavy lifting while helping someone move). However, to the extent that any of these activities constituted “work, ” none resulted in sufficient income to amount to a “substantial gainful activity” (“SGA”). See Tr. 11 (Plaintiff has not had SGA since onset).

         After the April 2012 emergency room treatment for the overdose, although she went to the emergency room for other reasons, Tr. 226, Plaintiff had a gap in mental health treatment. She did not see any provider for mental health treatment until August 2012, when she initiated care with a new primary care physician at Anchor Medical, Dr. Lyster. Tr. 230. At this appointment, Plaintiff complained of a headache; Dr. Lyster noted “[n]o recent discrete panic attacks” and that Plaintiff had recently begun a new job. Id. On mental status examination, Dr. Lyster found anxious thoughts and mood due to feeling “stressed as [a] single working mom also in school.” Tr. 231.

         After another treatment gap, on October 3, 2012, Plaintiff filed her disability application. The next day, she saw Dr. Lyster and complained of panic attacks and depression and explained that she “did not want to make a f/u appt until her insurance was in effect.” Tr. 228. Based on her complaints, Dr. Lyster referred her to psychiatry for acute depression and chronic anxiety. Tr. 229. On October 13, 2012, Plaintiff started therapy with Nurse Janis DeNuccio at Quality Behavioral Health (“QBH”) and on October 31, 2012, she initiated care with a psychiatrist at QBH, Dr. Terry Mailhot. Tr. 246, 253.

         Meanwhile, when Plaintiff returned to Dr. Lyster on October 18, 2012, she reported working intermittently painting a friend's business, increased exercise, more time spent doing music and increased focus on her son's well-being. Tr. 241. Dr. Lyster's mental status examination findings were largely normal. Tr. 242. Plaintiff did not see Dr. Lyster again for mental health issues until February 4, 2013, [5] when she reported panic attacks twice a week; on mental status examination, Dr. Lyster made normal findings except for anxiety, which she observed was “improving.” Tr. 399-401. Plaintiff told Dr. Lyster that she “was uninsured for a time, now reinstated.” Tr. 400. As far as the record reflects, this is Plaintiff's last appointment with Dr. Lyster in the relevant period.

         Between October 31, 2012, and January 28, 2014, Plaintiff saw Dr. Mailhot a total of seven times.[6] Tr. 246-52, 297, 369, 375, 382, 384-87. During the intake examination, Dr. Mailhot observed that Plaintiff was oriented with decreased concentration and attention, no psychosis, and fair insight and judgment; based on Plaintiff's reports of anxiety and a fear of crowds, Dr. Mailhot diagnosed an anxiety disorder and assessed Plaintiff's GAF at 60, evidencing moderate symptoms. Tr. 252. Despite Dr. Mailhot's treating form, which calls for recording the results of a mental status examination at every appointment, this is the only one recorded in the treating record.[7] Over the course of treatment, Dr. Mailhot diagnosed bipolar and anxiety disorders, prescribed Lithium and Klonopin, and noted frequent and severe panic attacks but also that, noted that, other than in October 2013, Plaintiff no longer went to the emergency room due to anxiety. Tr. 382.

         During approximately the same period (October 2012 through December 2013), despite a plan to have therapy every two weeks, Plaintiff saw Nurse Janis DeNuccio for therapy a total of seven times. Tr. 253, 296, 301, 374, 376, 380, 383. The therapy notes reflect Plaintiff's anxiety and panic attacks. See, e.g., Tr. 296 (“frequent anxiety attacks, poor sleep”); Tr. 301 (“unable to relax”); Tr. 380 (“anxious, tearful, and overwhelmed after ending a long-term relationship”). Much of the focus of the therapy was on the development of relaxation techniques. Id. There are no mental status examinations, although at each appointment, Nurse DeNuccio recorded Plaintiff's subjective report of her mood level.

         In October 2013, Plaintiff was overwhelmed by severe anxiety after finding out that the house she was renting had been sold and that she would have to move. In the face of this stress, Plaintiff sought emergency treatment at Kent Hospital, where she was diagnosed with panic disorder without agoraphobia. Tr. 345-56. On mental status examination, all findings were normal, except for anxious mood; her GAF score was assessed at 70 (evidencing mild symptoms). Tr. 346-47. For reasons that are not clear, apparently on the same day, [8] Plaintiff was also assessed at the emergency room at Rhode Island Hospital (“RIH”), where her GAF was noted to be 45, evidencing serious symptoms. Tr. 427-35. She was not admitted to either Kent or RIH; RIH staff “discharged [her] to home, ” noting “condition is good.” Tr. 435.

         B. Opinion Evidence

         On January 10, 2013, SSA psychologist Dr. Mary Hahn reviewed the file and opined to anxiety disorder as a severe impairment, resulting in mild limitations in activities of daily living and social functioning and moderate limitations in maintaining concentration, persistence, and pace with no episodes of decompensation of extended duration. Tr. 57-58. While Plaintiff's anxiety might occasionally disrupt task focus, limiting her persistence to two-hour intervals, Dr. Hahn found that she could make simple work-related decisions, manage tasks both independently and around others, and maintain a regular schedule. Tr. 59. Dr. Hahn's review was performed before either Dr. Mailhot or Nurse DeNuccio submitted their opinions; however, Dr. Mailhot's psychiatric evaluation was in the file and Dr. Hahn specifically noted it in her opinion. Tr. 57. Based on this evidence, the claim was denied initially.

         On March 25, 2013, after three encounters with Plaintiff, Dr. Mailhot signed an opinion on Plaintiff's mental functioning. Tr. 309-12.[9] In it, she lists diagnoses of bipolar disorder and anxiety disorder and notes that Plaintiff has had a poor response to pharmacology, although there are no known side effects to her medications. Tr. 309. The opinion provides for moderately-severe limitations in virtually every sphere of mental functioning, except for the ability to perform simple tasks, sustain personal habits, respond to coworkers and maintain attention and concentration, as to which Dr. Mailhot opined to moderate limitations. Tr. 310-11; ECF No. 10-2 at 4. Her opinion makes no attempt to harmonize these moderately severe findings with her own assessment of “moderate symptoms” only five months prior. See Tr. 252.

         In July 2013, during the reconsideration phase, SSA psychologist Dr. Stephen Clifford reviewed the file. He reviewed additional records submitted by Plaintiff, both from Dr. Mailhot and Nurse DeNuccio, and agreed with Dr. Hahn's opinion. Tr. 68-70. It is not clear whether these submissions included Dr. Mailhot's opinion, which was transmitted by counsel on April 4, 2013. Tr. 312. It appears that the Mailhot opinion may not have been included because the reconsideration explanation states that “[t]here is no indication that there is medical or other opinion evidence.” Tr. 69.

         The final opinion is dated April 2, 2014; in it, Nurse DeNuccio noted diagnoses of anxiety disorder with panic and bipolar disorder and treatment consisting of psychotherapy, lithium and clonazepam, with no side effects from the medications. Tr. 422. Except for Plaintiff's personal habits and activities of daily living, she opined that Plaintiff was moderately severely or severely limited in every area of mental functioning and would miss more than four days from work a month due to her condition. Tr. 423-25.

         II. Travel of the Case

         On October 3, 2012, Plaintiff applied for DIB, Tr. 62, alleging disability beginning May 22, 2012, due to depression and anxiety. Tr. 54. The application was denied initially, Tr. 62, and on reconsideration, Tr. 73. At a hearing on April 15, 2014, Plaintiff, represented by an attorney, and a vocational expert (“VE”) testified. Tr. 25-26. On May 28, 2014, the ALJ issued his decision finding that Plaintiff was not disabled within the meaning of the Act. Tr. 6-19. On September 15, 2015, the Appeals Council denied Plaintiff's ...


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